March 01, 2011

Co-authorship, Empiricism and Changes in Legal Scholarship

In the 1973 movie The Paper Chase, there is a well-known scene in which the protagonist law student Hart goes with trepidation to the office of the stern Professor Kingsfield. Hart’s entrance disturbs Professor Kingsfield from his work – reading and writing about the latest developments in contracts law.

When viewed in 2011, so much of the movie seems dated. Legal education – and our image of it – have in many ways changed a great deal since then. Instructors and students no longer accept routine humiliation as an effective pedagogic technique. In an age of laptops, i-pads, and electronic casebooks, the very notion of a paper chase seems anachronistic.

While our image of legal teaching has kept up with the times, our image of legal scholarship has remained relatively fixed. Most of us imagine that today’s law professor still works like Professor Kingsfield. Alone in the office, the law professor reads cases and statutes, thinks about them, and then writes about them. We imagine that legal scholarship remains an inherently solitary and essentially literary endeavor.

In a recent co-authored paper, we found that this image of legal scholarship has for some law professors become just as anachronistic as the paper chase. Some law professors now work in teams to produce scholarship; more and more scholars utilize statistical methods and other social science techniques rather than purely conceptual analysis in their scholarship.

We examined patterns of collaboration and methodology in top law reviews and two faculty-edited law journals. We found that the fraction of articles in the top fifteen law reviews that were co-authored trended upwards between 2000 and 2010. What explains this increase in collaborations? An increase in empirical articles accounted for a substantial share of the growth in co-authored articles, and the correlation between co-authorship and empiricism persisted after controlling for numerous other influences.

These patterns are consistent with standard economic predictions about human capital and teamwork: academic collaboration rises with scholarly specialization. As the complexity of a field grows, more and more diverse types of human capital are needed to make a contribution. Prior research has found a similar growth in co-authorship in some social science fields, such as economics, but the trend in law toward more collaboration has received relatively little attention.

As a further test of whether empiricism spurred more co-authorship in law, we examined the articles published since 1989 in two prominent, faculty-edited journals specializing in law & economics. Co-authored articles were far more common in these journals than in the general-interest, student-edited law reviews – a pattern which itself is consistent with the specialization hypothesis. The share of articles without empirical analysis or formal models in these journals plummeted over this period, while co-authorship rose sharply. These results support the view that specialization, and specifically the growth of empirical scholarship, has contributed to the trend of co-authorship in legal academia.

Some have given the recent growth in empirical scholarship the moniker Empirical Legal Studies (ELS), and others, including our own colleague Brian Leiter, have criticized it as an incoherent category and removed from the central normative and conceptual questions of law [see also Professor Wright's critique here]. We do not defend or oppose ELS as a category or a distinct legal subfield. But our evidence suggests that empirical studies of law and legal institutions increasingly occupy an important place in legal scholarship. Indeed, our results indicate that the expansion of empirical scholarship is one of the major developments in the legal academy during the last generation, and prima facie, we assume that at least some of it is responsive to the central concerns in law. The growth in co-authored empirical work in particular likely reflects real gains from specialization rather than simply a trend or fad.

It is no secret that today’s law professors do not conduct their classrooms in the same manner that Professor Kingsfield ran his. It is also becoming apparent that the scholarship that some of today’s law professors produce and the manner in which they produce it also bear little resemblance to Professor Kingsfield’s approach.